Every state has a constitution  a body of principles,
institutions, laws, and customs that forms the framework of government 
but not every state is a constitutional state. The latter is distinguished by a
commitment to constitutionalism, which in essence is the idea that political
life ought to be carried on according to procedures and rules that
paradoxically are in some degree placed beyond politics: procedures in other
words that are fundamental. Nothing so positive as a written constitution, but
rather the belief that the law as the embodiment of a society's most important
values is powerful, characterizes government under the rule of law.

Apprehension about the future of constitutional government in the United
States has increased in recent years. Political assassination, urban riots, the
resort to civil disobedience by groups as disparate as striking postal workers
and university students, the idea that politics is important enough to be the
object of secret intelligence operations  all of this is evidence of a
crisis in which the very legitimacy of public authority is called into
question. In the long run, however, perhaps even more unsettling than these
turbulent events is the intellectual and ideological challenge to
constitutionalism that they have produced.

This challenge appears most significantly, I believe, not in the
revelations of former White House aides, alarming as these are, but rather in
the crisis literature of political science which has attempted to explain the
upheaval of the past several years and offer a new theory of politics. The most
obvious feature of this literature is its critique of pluralism. Interest-group
liberalism, the antipluralists emphatically conclude, is the dead end, not the
vital center, of American democracy. Dissatisfaction with liberal pluralism is
not new, however, and in the recent literature it does not provide the special
animus of the attack on the liberal state. Rather impatience with
constitutionalism, which runs pretty deep amid the consciousness raising and
political involvement of our time, forms the essential theme of the attack on
pluralism.

The fundamental charge against pluralism is that it is not real
democracy, but rather a system of special privilege by which the rich and
powerful protect their interests at the expense of the people. American
politics, the antipluralists insist, simply does not work the way it is
supposed to in theory. It is fatuous, they say, to think that a vast number of
competing and roughly equal groups interact freely in the political
decision-making structure. On the contrary, a few corporate giants control the
political system. An even more damning indictment of pluralism is that it
excludes many groups from the political process entirely. Blacks, the poor,
students, women, and sundry minorities are all seen as relegated to a condition
of noncitizenship outside the political arena.1

If it is suggested that American politics is actually responsive to
demands from nonelite groups, the antipluralist answer is that the system may
work after a fashion, but the workings are all trivial and irrelevant. The root
of the trouble is said to be the biased context in which interest-group
politics operates. The political process may be open, the media relatively
accessible, freedom of speech and of the press secure. All this is beside the
point, however, for what is really important, say the critics, is "the other
face of power," that is, the class bias of pluralist politics which prevents
issues of real concern to the community from being brought into the political
arena. The groups which control the system ignore problems such as urban
blight, public transportation, worker alienation, and environmental
destruction. What officials do not do, the argument runs  the
nondecisions they make  are more important than the decisions they make
about insignificant matters.2

From here it is but a short distance to the doctrine of repressive
tolerance. Because the political system is managed in the interests of dominant
economic groups, Herbert Marcuse argues, there is an objective contradiction
between the political structure and the theory of pluralist toleration. In
practice equality of tolerance becomes abstract and spurious, an instrument of
coordination and control rather than a means of effecting change. Benjamin R.
Barber holds that when toleration is examined in the context of liberalism,
with its assumption of a utilitarian and individualistic ethic, it is revealed
as negligence of the public interest. The attitude which this kind of criticism
encourages will be recognized by anyone who has been on a college campus the
past five years. Student radicals take part in an election, work hard for a
candidate, and then if the candidate loses decry the system for failing once
again. In a gloss on this attitude, Barber states that the contemporary crisis
is rooted in skepticism about the ability of the system to serve the interests
of fixed minorities, who cannot or will not be assimilated into it. The
procedures of democratic pluralism become in this view mere legitimizing
rituals and the right of dissent an instrument of oppression. Barber concludes
ominously: "The politics which concerns itself with the good life,... which
aims at virtue rather than at mechanistic freedom, may not find much room for,
or be particularly interested in, tolerance."3

As Barber's statement suggests, the critique of pluralism goes beyond an
accounting of the specific failures of the liberal state in America. What is
being challenged is the very idea of constitutionalism itself. This is most
apparent in the antipluralists' preoccupation with political action.

Constitutionalism, they contend, even in its original eighteenth-century
formulation, was flawed by its failure to contain a concept of political
action. Beguiled by the idea of applying science to politics, the founders of
constitutionalism sought to control human behavior by devising rules and
procedures for the conduct of government that would eliminate the need for
political leadership and citizen participation. Placing their faith in
institutions rather than men, they provided no space for political action and
designed a mechanistic system which depersonalized, trivialized, and
fragmentized political life. Antipluralists charge further that
constitutionalism comprehends and protects mere private economic interests. It
thus denies the vision of politics as an educational and salvational activity,
and the possibility of defining and achieving a true public purpose. In liberal
society a "nondirective constitutionalism" aimed at containing competing
interests is substituted for authentic political community.4

Those who think of politics as the art of achieving the possible and see
in the constitutional system broad scope for political action may wonder about
the criteria used to reach these negative conclusions. And indeed skepticism is
warranted, for the antipluralists' critique of constitutionalism depends
heavily upon a conception of political action drawn more from philosophy than
from ordinary language and experience.

Following Hannah Arendt, critics of pluralism hold that political action
refers to acts which are novel, consequential, purposive, irreversible, and
indeterminate. All else, including the routine and often predictable responses
which characterize a stable constitutional regime, are defined  and
dismissed  as behavior. Perhaps not every antipluralist critic would
subscribe to precisely this formulation of the issue, but the demands for
relevant action and meaningful change heard so often these days come pretty
close to capturing the more technical definition. A corollary notion taken also
from Arendt is the idea of public space. As used by the antipluralists, public
space refers to opportunities in which men can appear to others and disclose
themselves in speech and action. This seems familiar enough, and we readily
think of the range of legally protected liberties under the first and
fourteenth amendments. But if speech and action and petitioning of the
government avail nothing in the way of boundless, novel, unanticipated, and
indeterminate results  nothing that meets the criteria of political
action  then there is evidently no true public space or genuine
political freedom.5

If constitutionalism is seen as defective in its original conception, it
is criticized all the more in its present-day reality for suppressing authentic
politics. This emerges most clearly in the attack on the "process theory" of
democracy. Classical democratic thought, the critics argue, posited broad
popular participation in politics in pursuit of the common good. In the Cold
War era, however, pluralists revised the classical theory by concluding that
democracy consisted in procedures and practices which assured a stable
political system characterized by low popular participation. Liberal democracy
became in essence a process distinguished by voter apathy and elite
manipulation.6

Although the antipluralists do not quite say that procedure is
unimportant, they believe it has too often been honored at the expense of
higher values. John Schaar thus decries "the liberal fear of politics and the
inability to see that the politics of a free people both depend upon and
promise more than a machinery of offices, procedures, statutes, and programs."
After students shut down many universities in 1970, Schaar and Sheldon S. Wolin
explained that a major factor in the domestic crisis was Americans' unduly
narrow conception of politics as bargaining, compromise, and electoral
contests. The "rules of the game are many and confining," the Berkeley
professors commented, and "hence small novelties look like major violations."
In similar fashion Wilson Carey McWilliams has suggested that any solution to
the contemporary political crisis must involve an abandonment of our
fascination for a government of mechanical contrivances designed to avoid
conflict, if not to eliminate politics altogether.7

Impatient, if not scornful of procedure, antipluralists regard politics
as a matter of commitment and values and substantive results. Pluralism in
contrast is seen as excessively concerned with stability and efficiency and,
therefore, as essentially antipolitical. Christian Bay epitomizes the
antipluralist animus in condemning what he calls the liberal myth that American
society is democratic and that only by working within the constitutional system
can a more just society be created. The most urgent contemporary need, says
Bay, is to destroy this myth.8

Certainly the critics of liberal pluralism have done their
demythologizing best. It remains to ask, however, what they would have in its
place and how their reform ideas stand in relation to constitutionalism.

In the recent crisis literature three tendencies can be discerned on the
question, what is to be done? One looks to civil disobedience as a source of
political renewal, a second contemplates the democratization of economic
organizations, and a third urges a new theory of politics based upon a revival
of citizenship.

Although practitioners of civil disobedience may see it as a way of
bringing down the system, scholarly interpreters contend on the contrary that
it can make the political system work better. Civil disobedience, they reason,
can become a new form of representation with the potential to revitalize
democratic citizenship. Those who engage in civil disobedience are seen as a
legitimate opposition whose political actions may enlighten the government and,
by informing it of its misuse of power, actually enhance the rule of law.
Tyranny being the exclusion of the public from the political, reasons Wilson
Carey McWilliams, we are perilously near that condition now. Yet a way out is
provided by civil disobedience, which by enabling citizens to gain access to
the public can be a means of constitutional reform. Hannah Arendt views civil
disobedients as organized minorities expressing their disagreement with the
majority. Placing recent protesters in the tradition of voluntary associations,
Arendt's novel argument envisions formal recognition of a lobbyist, group
representation role for civil-disobedient minorities.9

The hostility that people feel toward a nameless bureaucracy may lead in
the future to further spasms of civil disobedience. It is hard to take
seriously, however, the suggestion that "disciplined civil disobedience is
possibly a creative way to ask citizens of the state if they are satisfied with
other aspects of the delegational model that has served well but which may not
have produced the most equitable and efficient allocation of power and
resources to deal with emergent disaffection and unmet needs in the national
polity."10 If civil-disobedient groups do somehow become
"constitutionalized" they will be part of the pluralist political structure, a
curious and disappointing conclusion, it would seem, from the radical point of
view. Should civil disobedience increase, however, and produce a body of
concerned participating magistrates as McWilliams urges,11 the
result will more likely be an expedient people's justice than constitutional
government as we have known it historically.

A second reformist theme of the antipluralists concerns the enforcing of
accountability and responsibility in the economic power structure. It has
become a commonplace to observe that corporations wield political power and
make policies no different in substance and effect from those of public
officials. What is needed is to broaden the definition of the political to
include these nominally private but actually public institutions.

One way of constitutionalizing corporations is through judicial and
administrative regulation. Because this would mean more of the same sort of
centralized national regulation that has seemed so ineffectual in the past,
however, antipluralists take a dim view of it. They argue instead for
"participatory democracy." This is surely one of the more imprecise terms of
contemporary political discourse, but in the present context it means control
of corporations by those who work in and are affected by them. The system of
self-management that exists in Yugoslavia is taken as model. Workers would form
the board of directors or governing council of a business or industry, or in
larger enterprises elect delegates to a council. The point is not to
redistribute property, but rather to encourage democratic participation at the
place of work in order to reduce people's sense of powerlessness and contribute
to their self-development. Industrial democracy would make workers citizens of
the enterprise rather than corporate subjects. And by enabling them to see the
relationship between public and private spheres it would in turn make them
better citizens of the state.12

A politically engaged citizenry, the ultimate objective of both civil
disobedience strategy and participatory economic democracy, lies at the very
center of the third tendency in antipluralist reformism, the quest of a new
theory of politics. The immediate purpose of this quest is a regeneration of
citizenship and the creation of opportunities for genuine political action. But
for this to take place a new way of thinking about politics is required. And
this means rejecting as the proper method of political science the point of
view known as behavioralism, defined generally as empirical, positivistic,
value-free description of the existing political system.

The trouble with behavioralism, the antipluralists argue, is that it
takes what is for what ought to be: professing to be morally neutral and
rigorously objective, it turns out to be normative after all. What is more,
this unacknowledged normative influence is exerted in support of pluralist
constitutionalism. The techniques of behavioral political science, the
antipluralists observe, can be most effectively applied to organized,
predictable, routine processes. As constitutionalism produces exactly this kind
of political and social phenomenon, it encourages behavioralist studies, which
in turn reinforce the constitutional order. According to its critics,
behavioralism perpetuates faith in the utilitarian, technical rationality
characteristic of liberal constitutionalism.13

Antipluralists propose a new political theory that will not be
restrained, as behavioralism is said to be, by facts selected as functional
prerequisites of the existing order. On the contrary, political theory must
recognize the facts of the real world that do not accord with the received
liberal wisdom, and thus open itself to new possibilities. Rejecting the ideal
of an objective social science, antipluralists contend that factual knowledge
about what is or has been should not dominate political education, as it
usually has. Sheldon Wolin states that the knowledge characteristic of the new
theory of politics is suggestive and illuminative, rather than explicit and
determinative. Instead of accepting the assumptions of the established system,
the new political theory will acknowledge as all-important the context in which
events occur and will show respect for the people who engage in political
action.14

Taking the argument several steps farther, Henry S. Kariel calls for a
social science that instead of reconciling us to our fate will expand political
reality. In Kariel's view the new political theory must provide metaphors,
models, languages, forms, and conceptual frameworks that will make it possible
to identify the contours and meaning of political life lying below the surface
of society. Sharing the sense of failure that many political scientists felt at
their inability to predict the upheavals of the sixties and early seventies,
the antipluralists are warning us to grasp and make sense of this new reality.
The social scientist, says Kariel, must interpret the actions of previously
suppressed persons in such a way as to bring them into  and thus expand
 the political present. Sheldon S. Wolin similarly declares that with
the world seemingly coming apart, a theoretical imagination is needed which
will admit new facts and restate new possibilities.15

Wolin's appeal has not gone unanswered. Indeed the antipluralist
theoretical imagination has been exceedingly active in trying to discern the
political meaning of recent events. With a kind of apocalyptic zeal it projects
the vision of a dynamic politics of commitment in which participating citizens
find a new ground of being and realize their true humanity and potential as
individuals. The apathy and indifference of pluralism are not only condemned on
moral grounds, they are stood on their heads and transformed into a throbbing
political activism. Full participation  "nothing less than a society all
of whose members are active participants in an interminable process  and
who will not mind such activity," says Kariel  is the goal. The key to
attaining it lies in enlarging the public space within which true political
action can take place. Outsiders, the underclass, apolitical men and women who
desire to speak and act in public and gain recognition, are to be brought into
the political arena. To overcome people's feelings of alienation and
powerlessness, the distance between them and government must be reduced, the
height of government scaled down, the veil of secrecy about government lifted.
A public life of common involvements will be the result.16

Empirical as we are, we think of public space in concrete terms and
wonder which new modes and forms and jurisdictional arrangements will implement
this vision. In their reaction against positivistic social science, however,
the antipluralists incline toward a symbolic view of the problem of public
space. Robert J. Pranger writes that the boundaries of the political arena may
be territorial and organizational, but also spiritual and intellectual. Pranger
finds inspiration in Hannah Arendt's description of the ancient polis as "the
organization of the people as it arises out of acting and speaking together,"
its true space lying "between people living together for this purpose, no
matter where they happen to be." The political space, time, distance, and
choice in which citizenship consists are thus more a matter of psychological
perception than objective reality. In an age when alienation is assumed to be a
mass phenomenon this is perhaps to be expected. It is striking nevertheless to
learn that the picture of the French resistance during World War II  as
a "republic of silence" without formal institutions or leaders, in which
political actions were taken with a sense of common involvement and
responsibility for the freedom of others  is taken as a model of
participatory politics completely irrespective of its empirical or historical
accuracy.17

Citizenship in the new political theory, instead of being an empty
catalogue of subjects' rights, becomes an opportunity for creative political
action. Citizens acting in true community define themselves as human beings,
gain knowledge of themselves and others, and discover that which unites them as
brothers. Participation in decision making becomes an ennobling and educational
venture which overcomes the separation between man and citizen, unites personal
and social forces, and eliminates the dichotomy between public and
private.18 In the upper reaches of the new political consciousness,
Sheldon Wolin and John Schaar tell us, "knowledge, personal identity, and
public commitment are part of the same quest." Benjamin R. Barber offers a new
word  "philopoly"  to describe the love of politics for its own
sake that will characterize true democratic participation. Equally optimistic,
Henry S. Kariel urges that the pleasures and rewards of political discourse and
deliberation be extended to everyone rather than kept by the elite for
themselves. Politics, Kariel suggests, ought to be regarded "as a form of play,
as characteristically a performing art" which becomes a manifestation of human
freedom and "the determination to ... create publicly meaningful structures of
being...." The outer limits of the new political universe seem to be reached in
Herbert Reid's definition of politics as "the tendency of men in general to
resist, whatever the means, the severing of meaningful self-world
relationships...."19

In view of the quasi-religious character of the appeal, one might ask by
what signs a second coming of authentic citizenship and true democracy would be
known. Although the antipluralists profess an attitude of openness toward the
future rather than an ability to predict it, they have at times assessed
contemporary affairs in the light of the new political theory and indicated
what the new politics might look like in the real world.

Despite their impatience with pluralist politics, some antipluralists
regard voting as a possibly significant form of political action. The catch is
that there must be a real choice, which according to one writer means following
the candidates into office and affecting their policy decisions, and voting
should be perceived as a manifestation of man's desire to appear in public and
display his freedom.20 These are large qualifications which,
together with an awareness that an activated silent majority might well be
"unprogressive" in outlook, lead the critics of pluralism to take only a
reluctant interest in the usual forms of liberal politics. Organizing projects
 in urban slums, on college campuses, and in factories  are a
more likely expression of the new politics. Such efforts reflect the current
interest in decentralization, with its assumption that the consensus-forming
methods of small-group interaction can be applied to political and social
problems. A few years ago attempts to incorporate "maximum feasible
participation" in the federal government's war on poverty seemed to embody this
approach. Yet none of these undertakings has seriously challenged the structure
of pluralist politics.21

The events which have given antipluralists the clearest vision of a new
politics, leading Wolin and Schaar to think that "perhaps even the birth of the
American as a political man" was imminent, were the student strikes, ghetto
riots, and general upheaval of the late 1960s. These developments, so
disturbing to most people, were regarded with hope and expectation by the
critics of liberal pluralism. Thus Henry S. Kariel suggested that what seemed
to be violent and irrational actions were really controlled efforts to break
with present actualities and create a new reality. Though threatening to
middle-class sensibilities, they were rational actions which ought not to have
been dismissed as "dysfunctional" to the system. Describing the youth of the
1960s, Wolin and Schaar recorded "a rich variety of truly political actions
[which] showed a genuine concern for public things, thereby reversing the long
trend toward privatization." In particular young people "argued, sang, marched,
organized, sat in, milled around, walked out, and disrupted.22

Even brighter promise appeared in the swiftly explosive reaction to the
U.S. incursion into Cambodia in May 1970. Thousands of students who would have
nothing to do with politics as usual engaged in the spontaneous and
unpredictable political action that unfolded on the nation's campuses.
According to Wolin and Schaar, this was a new politics, impatient with routine
and contemptuous of compromise. Kinetic, pulsating, and shaped toward
experiencing a climactic moment, it gathers energy and when confronted with
abstract rules spills over into overt, unpremeditated, and collective violence.
This violence, however, say these interpreters of the New Left, is to be
understood as a protest against the pedestrian politics and stale rhetoric of
liberalism. Assaulting the police is "a way of asserting that there is a human
reality to the world, that the world is not all plastic and steel." Wilson
Carey McWilliams reasons similarly that the politics of involvement demanded by
the present crisis necessarily brings with it a kind of violence. It is the
kind of violence, McWilliams writes, "that best enables a man to find himself,
his friends, and a standard of legitimacy."23

McWilliams is not talking about violence in the usual sense of physical
assault, and I do not wish to imply that he and like-minded critics are
advocating a brass-knuckles approach to political action. But one does wonder
what they are driving at, and what the implications and effect of their
analysis might be. These are not easy questions to answer, in part because the
new political theory seems to disdain, not just politics as usual, but critical
rational thinking as usual.

Wolin says that political life is elusive, and meaningful statements
about it must be allusive and intimative. The new theory he advocates would
deal in "tacit political knowledge" rather than "methodistic truths." Pranger
goes further in declaring that there may be differences between the demands of
theory construction and simple description of empirical facts. He suggests that
a "suspension of the empirical" is involved in the formulation of the new
political theory. When in the face of widespread social disorder Kariel advises
the social scientist to "publicly ponder and implicitly exalt the sheer
appearance of political life  the inexplicable fact that it is present
at all"  suspension of the empirical seems to have become abandonment of
common sense. Indeed an apocalyptic note, not dominant perhaps but distinctive
nonetheless, enters the antipluralist crisis literature. It can be seen, for
example, in Aristide Zolberg's speculation about "moments of madness" when the
wall between the instrumental and the expressive collapses. "Is it farfetched,"
he asks, "to believe that those imbued with extraordinary sensibility provoke
moments of exaltation, when the meek can more easily enter the
kingdom?"24

It may be, as anthropologist Stanley Diamond argues, that the rule of
law is a symptom of the disorder of customary institutions and the decline of a
civilization.25 Believing that the second coming of true democracy,
community, and participation would obviate the whole rule structure of the
modern liberal state, the antipluralists seem to share this view. Until our
political salvation is assured, however, we are justified in asking what the
implications of the new politics and the new political theory are for
constitutionalism.

Although the question usually is of interest to liberals and
conservatives, some radical antipluralists, despite intense criticism of the
liberal state, profess concern for constitutionalism. Theorists of civil
disobedience and economic democracy seek ways of legitimizing new forms of
dissent and constitutionalizing the great aggregates of economic power. A few
theorists of the new politics say their purpose is to revise constitutionalism
to provide greater scope for political action, diminishing the height of
government but not removing the restraints upon it. In fighting for their
causes, moreover, radicals will rely on constitutional rules for protection.
Some caution further against rejecting bourgeois liberal constitutional ideals
simply because they have often been a cloak for oppression, and express concern
for constitutional processes within the radical movement, lest violence and
brutality obliterate peaceful procedures. This is evidence that the attack on
the pluralist system does not necessarily mean repudiation of the idea of
constitutionalism.26

Nevertheless, the new political theory of the antipluralists contradicts
the fundamental ideas of constitutionalism. Those critics who profess to revise
the theory of constitutionalism are mistaken, I believe, in their understanding
of its essential meaning. To them  and inferentially to the
antipluralists in general  constitutionalism means, or ought to mean,
the people as constituent power, the source of authority and ground of law. It
means further the people creating political power by forming a social compact
and exercising that power in governing themselves. The ancient notion of
popular sovereignty, dating from the founding of the republic, epitomizes this
conception of constitutionalism.

Its root idea is politicism, the belief, that is, that political will
and the force of personality, knowledge of the good and the will to realize it
in acts of wisdom, are more important for good government  and more
decisive in determining the course of events  than any institutional
framework or procedural arrangements. Governments are like clocks, runs the old
aphorism, and go from the motion men give them, not from anything in
themselves. This politicist argument has always had considerable appeal. When
it is applied to the people has a whole, and they are invested with the power
of political action  especially as the antipluralists would define
political action  it acquires even greater force, if indeed it does not
become irresistible.

But while flexibility, discretion, personal character, and freedom of
political action  the elements of politicism  have had a place in
the constitutional tradition, they have not formed the essence of it. In
essence constitutionalism has meant adherence to certain formal procedures
embodying and promoting the fundamental values of liberty, equality, and
justice; to ways of conducting politics and managing public affairs which
preserve a space immune to or beyond politics. In other words, while the people
have been the constituent power, their power to govern  popular
sovereignty  has been limited by their own constitutional creation. At
its inception in the eighteenth century American constitutionalism was marked
by an extraordinarily democratic basis, and the people as constituent power was
the most startling of the revolutionary ideas.27 Yet the idea that a
constitution was superior to and controlling of the political power of
government, even when the people themselves exercised that power either through
established institutions or outside them, was also part of revolutionary
constitutionalism.

In the history of Western political thought this idea of fundamental law
was as remarkable an innovation as the notion of the people as constituent
power. In the long run it became the truly distinctive feature of American
constitutionalism. The Constitution was conceived of as a means of conducting
politics, but it did not consist in a mere declaration of purposes or a set of
exhortations, as the French constitution of 1791 did. It was on the contrary
explicitly declared to be law, the supreme law of the land along with treaties
of the United States and acts of Congress made in pursuance of it. Ordinary
law, as between private persons, was to be used to regulate the acts of
government and the energies and passions of politics. And this political law
maintaining the structure of the body public and protecting individual liberty
against encroachment by the government, a paradoxical and contradictory thing
according to the best learning of the day, was to be enforced by ordinary
courts of justice. It was altogether a curious amalgam which, in conjunction
with the division of power between national and state governments known as
federalism, effectively destroyed sovereignty as it was then known. And it
meant too that popular sovereignty must be stillborn, must be placed under
constitutional restraints as well.

It is the age-old politicist drive to be free of procedural restraints
which informs the antipluralist appeal for a new politics. Expressing this
appeal in modern terms of commitment, transcendence, and self-fulfillment, the
critics resurrect the classic democratic ideal of an engaged citizenry
exercising political and legal sovereignty and standing above institutions. But
no better than anyone else are the antipluralists able to explain how
fundamental fairness can obtain in a system of government in which all is
politicized.

The essence of the political is discretion, discrimination, expediency,
adjustment of conflicting claims on a pragmatic basis. The essence of the legal
is general and prospective rules that result in regular and predictable
procedure. A constitution must of course generate power as well as channel it.
It must comprehend both the political and legal dimension. And in a strict
sense we cannot say that one is more important than the other; both are
essential. Yet while we can be certain that political energies and passions and
conflicts will continue to manifest themselves, with the insistence and power
seemingly of natural forces, the experience of the twentieth century tells us
that the existence of a stable and just system for restraining these forces
cannot be taken for granted. The opposite of constitutionalism 
arbitrary and coercive government which denies political liberty and free
public criticism  must be guarded against. And this means keeping in
mind, to use the language of social science, a contrast-model.

From the 1930s to the 1950s totalitarian regimes in Europe provided a
vivid contrast-model which led intellectuals in the United States to reconsider
their own constitutional tradition. Instead of dismissing the rule of law as a
conservative fiction and a device for maintaining the status quo, as many had
done, they came to see it as a valid distinction between systems of government.
A revival of interest in constitutionalism occurred which made it a principal
theme in modern liberalism.28

The antipluralists have reacted against liberal constitutionalism as
though it were entirely ideological  a reflection of the false
consciousness of its adherents  and lacking any basis in historical
reality. They deny the validity of the totalitarian contrast-model on the
ground that it fosters complacency and, by failing to emphasize problems,
forecloses the possibility of change.29 Yet it is difficult to
ignore recent history  right down to the latest interdiction of free
speech and academic inquiry by student radicals  and hard not to be
apprehensive about a political theory that exalts popular participation and
political action to the extent that the new politics does. It may seem entirely
clear to the heralds of the new citizenship that the mass participation of
modern technological society is completely different from the true democratic
participation they envision, but a skeptical view of this distinction seems
warranted How realistic is it to think that men and women will engage in
politics for the sheer love of it, apart from practical purposes? Benjamin R.
Barber states that "a new era of philopoly might help to make life for
man in the post-historical epoch livable."30 It would be more
accurate to say that only after history ends  in the world to come
 will people play at politics for the love of the thing itself, as some
antipluralists believe.

If the present crisis is rooted in an erosion of community which has
released proliferating forces of conflict, calling into question the authority
of government and politicizing all manner of social processes and
relationships, the solution lies not in further encouragement of politicist
tendencies but in their being brought into a more stable equilibrium with the
essential ideas and procedures of constitutionalism This will not be
accomplished by stern admonitions from high officials to respect law and order,
especially now in the light of the Watergate revelations Whether the crisis can
be surmounted according to prescriptions offered meanwhile by political
scientists in the liberal constitutional tradition may also be doubted These
solutions range from Lowi's juridical democracy, to Friednch's call for
inspirational democratic leadership, to Tugwell's new model constitution
Appealing as these suggestions are, they seem to assume against the evidence
that someone somewhere has the knowledge and power to set things
right.31

The crux of the matter is the tendency and habit of ordinary citizens to
regard political institutions and procedures as legitimate In the United States
legitimate authority derives in large part from the direct link with the
eighteenth-century Framers' act of foundation and the consensual basis on which
it rested. This basis has been seriously challenged, but how far the
disintegration of community has gone is not clear Probably it has not gone as
far as the dramatic events of a few years ago seemed to indicate The structure
of assumptions, beliefs, and practices in which constitutionalism consists may
be more solidly based than it appears in the crisis literature Nevertheless,
the antipluralists' insistence on ever greater political participation and
action reflects and represents a challenge to constitutionalism that is not
merely academic.32 If the liberal constitutional order collapses,
the critics of pluralism might consider, it is not at all likely that a
left-wing movement dedicated to participatory democracy will take its
place.

Notes

Research for this article was supported by a grant from the American Bar
Foundation for research in constitutional and legal history.

12 Peter Bachrach, The Theory of Democratic Elitism: A Critique
(Boston, 1967), pp. 72-104, Carole Pateman, Participation and Democratic
Theory (Cambridge, 1970), passim, Kenneth A Megill, The New
Democratic Theory (New York, 1970, pp. 89-120 Robert A Dahl, not otherwise
an antipluralist, has endorsed this approach in "Power to the Workers?" New
York Review of Books, XV (November 19, 1970), pp. 20-24 See also "The New
Corporatism," the entire issue of the January 1974 Review of Politics,
to be published with some additions as a book in the spring of 1974 by the
University of Notre Dame Press.

25 Stanley Diamond, "The Rule of Law versus the Order of Custom,"
Social Research, XXXVIII (Spring, 1971), pp. 42-72.

26 Thompson, "Constitutional Theory and Political Action", Pranger,
Eclipse of Citizenship, pp. 68-72, Barrington Moore, Jr., Reflections
on the Causes of Human Misery and Upon Certain Proposals to Eliminate Them
(Boston, 1972), pp. 112-14, Kettler, "The Politics of Social Change", Wolin and
Schaar, "Is a New Politics Possible?" p. 4.

27 R. R. Palmer, The Age of the Democratic Revolution: A Political
History of Europe and America 1760-1800 (2 vols , Princeton, 1959-64), I,
pp. 213-35.

28 Herman Belz, "Changing Conceptions of Constitutionalism in the Era of
World War Two and the Cold War," Journal of American History, LIX
(December, 1972), pp. 640-69.

29 Lockard, Perverted Priorities of American Politics, p. 18,
Connolly, ed., The Bias of Pluralism, p. 23, Duncan and Lukes, "The New
Democracy," pp. 174-77 The intellectual discrediting of the idea of
totalitarianism is described in Robert Burrowes, "Totalitarianism The Revised
Standard Version," World Politics, XXI (January, 1969), pp. 272-94, and
Herbert J. Spiro and Benjamin R. Barber, "Counter-Ideological Uses of
'Totalitarianism,'" Politics and Society, I (November, 1970), pp. 3-22.

30 Barber, Superman and Common Men, p. 122.

31 Theodore J. Lowi, The End of Liberalism Ideology, Policy, and the
Crisis of Public Authority (New York, 1969), pp. 287-314, Carl J. Friednch,
"Bureaucracy Faces Anarchy," Canadian Public Administration, XIII (Fall,
1970), pp. 219-31, Rexford G. Tugwell, "Constitution for a United Republics of
America," The Center Magazine, III (September/October, 1970), pp. 24-45,
Robert Y. Fluno, "The Floundering Leviathan Pluralism in an Age of
Ungovernability," Western Political Quarterly, XXIV (September, 1971),
pp. 563.

32 How literally unacademic the challenge is can be seen in a
sympathetic critic's observation that to achieve true community advocates of
the new political theory will not undertake empirical research, but rather will
become actively involved in social movements, teach "skills of criticism to
large numbers of people," and engage in "philosophical investigations into the
structure of openness, integrity, and self-knowledge." Michael A Weinstein,
"The Inclusive Polity New Directions in Political Theory," Polity, V
(Spring, 1973), p. 372.